Simon Lester has raised the issue of the proposed Californian ban on Foie Gras and its WTO compatibility. Foie Gras is a food product made of the liver of a duck or a goose after specially fattening it. The methods of fattening differ.The ban has been widely reported here, here and here.
Is the ban consistent with U.S.'s WTO obligations? The French exporters of this product definitely do not think so. There are a number of stakeholders involved here: Hotel industry, exporters of the product, the Government, consumers,animal welfare activists, and the animals themselves. Does it violate the TBT Agreement? Since the ban applies to both imported as well as domestic food products, Article 2.1 of the TBT Agreement may not be violated. However, does it create an unnecessary obstacle to trade under Article 2.2 of the TBT Agreement? Is it necessary to "fulfill a necessary objective" of protecting animal life or health and thus justifiable under Article 2.2 of the TBT? Does Article XX of GATT provide the justification for this measure?
The larger issue is to what extent moral, non-trade values can restrict trade? The Californian legislature, in its wisdom and choice, views foie gras as violating animal welfare as well as against its values of animal welfare. Is that sufficient ground for banning the food product? Can individual countries' (or their constituent's) values be a justifiable reason for a restriction on trade? Do the WTO rules allow this?
Opinio Juris has an interesting debate on the use of public morals to justify animal welfare measures with Robert Howse and Joanna Langille's article being the discussion point. I had briefly touched on this topic in by earlier blog post titled "WTO, pluralism and domestic policy space - Some questions" here. Will get back to this fascinating debate in forthcoming posts.